186 Conn. App. 270
Conn. App. Ct.2018Background
- DE Auto Transport, Inc. (plaintiff) was formed by Dariusz and Elzbieta Penkiewicz to provide vehicle transport services; in 2011 it had four transport vehicles.
- Dariusz entered an oral agreement with Leopold Zayaczkowski and Eurolite, LLC (defendants): Eurolite loaned $48,500 to buy a larger truck and trailer; plaintiff would repay over 36 months at 14% and split profits 60% (plaintiff) / 40% (Eurolite).
- Plaintiff purchased a 2005 Peterbilt and a Cottrell trailer; payments began in March 2011. Dariusz left for Poland in Feb 2012, harming operations; Elzbieta managed the business in his absence.
- Eurolite repossessed the Peterbilt and trailer in April 2013 (returned after police involvement, then repossessed again). The plaintiff liquidated and ceased operations in mid-2013; Elzbieta later relocated and divorced.
- Plaintiff sued for wrongful repossession, conversion, statutory theft, CUTPA, and disgorgement; CUTPA and disgorgement claims were dismissed or abandoned. After a bench trial, the court assumed liability but denied damages, finding causation and damages unproven.
- Plaintiff’s sole damages evidence was a CPA report by Robert Gollnick valuing the business at $116,000 and asserting a $97,810 income loss; the trial court found Gollnick’s report unreliable due to incomplete/inaccurate tax returns, undisclosed loan/profit-sharing, and other omissions including tax-evasion concerns.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether damages must be awarded once liability is assumed | Gollnick’s report proves lost profits and business value; court should award damages | Damages not proven with reasonable certainty; evidence unreliable and causation lacking | Court may deny damages despite assuming liability; no award where damages not proven with reasonable certainty |
| Whether plaintiff proved lost profits | CPA report ($116,000 business value; $97,810 loss) is sufficient to estimate damages | Report is based on incomplete/inaccurate information and is not credible | Report was not credible; lost profits not proven with reasonable certainty |
| Whether liquidation was caused by repossession | Liquidation resulted from wrongful repossession of the Peterbilt and trailer | Liquidation resulted from other events (Dariusz’s departure, extramarital issues, declining revenue, credit denials) | Court found liquidation caused by other events, not repossession; finding supported by evidence |
| Whether other damage theories (truck value, statutory damages, disgorgement) were preserved | Plaintiff argued at oral argument these were available remedies | Defendants noted plaintiff did not plead or pursue them at trial | Claims not preserved/raised at trial were not reviewed on appeal; court declined to consider them |
Key Cases Cited
- Weiss v. Smulders, 313 Conn. 227 (Conn.) (standard: damages must be proven with reasonable certainty)
- Keith E. Simpson Assocs., Inc. v. Ross, 125 Conn. App. 539 (Conn. App.) (trial court credibility and factfinding are exclusive province of trier)
- State v. Krijger, 313 Conn. 434 (Conn.) (standard for clearly erroneous review)
- Ray Weiner, LLC v. Connery, 146 Conn. App. 1 (Conn. App.) (damages must be awarded on credible evidence)
- DiMiceli v. Cheshire, 162 Conn. App. 216 (Conn. App.) (appellate courts generally do not review claims raised first on appeal)